WHO DECIDES WHETHER YASER HAMDI, OR ANY OTHER CITIZEN, IS AN ENEMY COMBATANT?

Last week, a Richmond, Virginia courtroom was the site of a dramatic confrontation between federal district judge Robert Doumar and the United States Department of Justice. The narrow question at issue was whether Yaser Hamdi, a United States citizen who was captured in Afghanistan, is entitled to meet with a lawyer. Hamdi's case, however, also has much broader implications.

The government asserts that domestic courts have no authority to question the military's determination that a citizen is an enemy combatant. Yet the consequence of such a determination is that the citizen may not be entitled to all of the procedural protections of the Bill of Rights. These include the right to a lawyer, the right against self-incrimination, and the right not to be held indefinitely without being charged with a crime.

If the government's view prevails, and it alone decides who is an enemy combatant, then there is nothing to stop it from declaring anyone--you, me, or Tom Daschle--an enemy combatant who can be detained indefinitely without trial.

Our Constitution allows for such a draconian measure, but only on one condition. In wartime, Congress has the power to suspend the privilege of the writ of habeas corpus--which permits a court to examine the lawfulness of executive detention. Congress clearly has not taken that drastic step. Nor has President Bush attempted, as President Lincoln did during the Civil War, to suspend habeas corpus unilaterally.

Civilian courts should grant the executive branch considerable deference in making military determinations, whether or not we are technically fighting a war--and they have a long tradition of doing so. But deference does not, and should not, mean rolling over and playing dead.

Hamdi's Situation: An American Citizen Discovered at Guantanamo

Yaser Esam Hamdi was born in Louisiana. Under Section One of the Fourteenth Amendment, he is therefore a citizen of the United States, even though he spent most of his life outside this country.

After being captured during the Afghanistan conflict, Hamdi was initially held at the Naval Base in Guantanamo Bay, Cuba. But when his American citizenship came to light, the government transported him from there to the brig at the Norfolk Naval Station.

The Fight Over Who, If Anyone, Could Raise Hamdi's Claims As "Next Friend"

In May, the federal public defender for the Eastern District of Virginia, Frank Dunham, filed a habeas corpus petition on Hamdi's behalf. Because Hamdi was being held incommunicado, Hamdi himself had not authorized the petition to be filed. Thus, Dunham filed what is known as a "next friend" petition, a legal device that permits a third party to act on behalf of someone who is incapable of acting on his own. Dunham named himself and Christian Peregrim, a private citizen in New Jersey, as the next friends.

Judge Doumar directed the government to respond to Hamdi's petition and also ordered that Hamdi be given unmonitored access to a lawyer. The government immediately appealed to the United States Court of Appeals for the Fourth Circuit. That court issued an order staying Judge Doumar's ruling, so that it would not take effect until and unless it was affirmed at the appeals stage.

The Fourth Circuit subsequently held that Dunham and Peregrim's next friend petition was invalid. It found that neither Dunham nor Peregrim had a significant relationship with Hamdi, whereas his father, Esam Fouad Hamdi, was available to file, and indeed had filed, a next friend petition before Judge Doumar.

Judge Doumar, meanwhile, ruled on Hamdi's father's petition. He found, correctly, that Hamdi's father had legal standing to act as next friend. He then ordered, once again, that Hamdi be given unmonitored access to his lawyer.

The government next went back to the Fourth Circuit, which issued another decision. It agreed that Hamdi's father had legal standing to act as next friend. But it thought that Judge Doumar's decision granting Hamdi unmonitored access to an attorney was premature. Thus, it sent the case back down to Judge Doumar, so that he could rule on a threshold question relevant to deciding whether Hamdi retains the Sixth Amendment right to counsel.

Specifically, Judge Doumar has to decide whether Hamdi is, as the government has argued, an enemy combatant subject to military rather than civilian jurisdiction. If so, even though he is a citizen, he still would not be entitled to all of the protections of civilian courts.

The Government's Uncontroversial Substantive Claim

The government makes two distinct claims regarding Hamdi, one substantive, the other procedural. As a substantivematter, the government argues, enemy combatants captured during the course of hostilities are subject to military, rather than civilian, jurisdiction. This is a relatively uncontroversial proposition.

To be sure, there has been disagreement over whether Taliban members count as unlawful combatants--as explained in earlier columns on this site, one by myself, and one by Joanne Mariner. But that issue should not be confused with this one. Unlawful combatants are defined as those who, by virtue of their failure to comply with the international law of war, cannot claim the protections of the Geneva Convention. Thus, they need not be tried before U.S. courts-martial, and can be subject to the less rigorous rules of the military commissions President Bush authorized last fall.

Lawful enemy combatants who are charged with offenses under the rules of war are entitled to the rules that obtain in U.S. courts-martial. But the military can detain lawful combatants, if it chooses, without charging them with any offense. It can simply hold them as prisoners of war until the cessation of hostilities.

There are real questions about when, if ever, the war on terrorism will end. Regarding the allegations against Hamdi, however, it's clear that hostilities have not ceased. We continue to have troops on the ground in Afghanistan who periodically come under fire from the remnants of Taliban and al Qaeda forces. So if Hamdi was indeed a Taliban member and thus an enemy combatant, he remains one.

The Government's Troubling - and Erroneous - Procedural Claim

But was he? The "if" brings us to the critical procedural question in Hamdi's case.

Hamdi says that the government has offered no evidence that he is in fact an enemy combatant. And since he is a citizen, and the privilege of the writ of habeas corpus has not been suspended, he says, the Constitution entitles him to have a civilian court examine the factual basis for his detention.

The government disagrees--putting forth a view the Fourth Circuit aptly labeled "sweeping." It contends that "with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so."

The Fourth Circuit did not expressly address the question of whether that sweeping view is correct when it remanded the case to Judge Doumar for him to consider whether Hamdi is an enemy combatant. But it strongly suggested that a federal district judge is entitled--indeed, required--to demand some factual showing before sustaining detention of a U.S. citizen labeled an enemy combatant.

And indeed, if the government's representation was all that was necessary to establish that a U.S. citizen was an enemy combatant, the remand would hardly have been necessary because Judge Doumar would have nothing to do in the remanded case. Thus, the Fourth Circuit has given a strong signal that it disagrees with the government's position that its combatant status determinations are unreviewable.

The question left open by the Fourth Circuit--and the question that was at the heart of the sparring in Judge Doumar's courtroom last week--is just what kind of a factual showing the government must make.

The Government's Case Against Hamdi: A Summary, Not the Evidence Itself

The government's case against Hamdi is contained in a two-page "declaration of facts" from Michael H. Mobbs, a Defense Department special adviser. In an order issued on August 16 of this year, Judge Doumar found the Mobbs declaration inadequate.

The judge listed a number of deficiencies, including: its failure to identify exactly who Mobbs is or precisely what function he performs; the designation of Hamdi as having been "affiliated" with the Taliban without specifying the nature and degree of that affiliation; and perhaps most fundamentally, the declaration's statement of factual conclusions without setting forth most of the evidence that gave rise to those conclusions.

Accordingly, in his August 16 order, Judge Doumar required that the government produce more detailed evidence about how it determined that Hamdi is an enemy combatant and why it is holding him in solitary confinement. That evidence would be reviewed in secret by Judge Doumar, to avoid disclosing information that could be harmful to national security. The order requires compliance by today, August 21.

However, rather than comply, on August 19, the government filed a motion in the Fourth Circuit, asking that Judge Doumar's order be stayed pending appeal. As this column goes to press, the Fourth Circuit has not yet ruled on the government's stay application, but that court--and perhaps the United States Supreme Court as well--will likely have to face the ultimate issue soon enough.

So, should the Mobbs declaration be deemed sufficient to support classifying a citizen as an enemy combatant who is not entitled to all of the protections of the Bill of Rights applicable to civilian courts? The answer comes from a technical doctrine of federal jurisdiction that was not cited in Judge Doumar's order but lends credence to his position: the "jurisdictional fact" doctrine.

The "Jurisdictional Fact" Doctrine: Why the Judge Should Review the Evidence

The leading decision in the jurisdictional fact doctrine is the important but intricate 1932 Supreme Court case of Crowell v. Benson. Here is a somewhat oversimplified description of its holding: Suppose the law assigns certain workers' compensation cases, under certain conditions, to the executive branch, not the judiciary. Who decides whether these conditions obtain? According to Crowell, it is the judiciary that retains the authority to make this threshold determination.

More generally, Crowell and subsequent cases establish the proposition that courts have the authority to examine the facts that are necessary to trigger executive jurisdiction over a class of issues - that is, courts get to decide "jurisdictional facts."

In the public debate over the legality of the military commissions that the President has authorized but not yet used, the Bush Administration has frequently invoked the Nazi saboteur case, Ex Parte Quirin. As the Administration has noted, the Supreme Court upheld the use of military tribunals for unlawful combatants. But Quirin also did something else: it left the jurisdictional fact doctrine untouched.

Granted, no civilian court heard new testimony in Quirin. Yet the Supreme Court did engage in substantial review of the underlying factual record as developed in the military tribunals themselves--rather than just accepting the tribunal commanders' say-so as to what conclusions should be drawn from what occurred, and their vouchsafe that the right procedures had been used.

In short, the Court itself, in Quirin, looked much further than the government wants Judge Doumar to look in Hamdi's case, and did not simply take the government at its word. And if the Administration is going to live by Quirin in defending the tribunals, then it ought to live by Quirin in respecting the jurisdictional fact doctrine, too.

Taken together, Crowell and Quirin strongly suggest that it is not enough for the military simply to tell the courts what factual conclusions it has drawn in determining that a citizen is subject to its jurisdiction. The courts must be given access to a substantial part of the evidentiary record as well.

The precedents suggest, that is, that Judge Doumar was correct in his conclusion that the Mobbs declaration is inadequate. He is entitled to see more of the evidence supporting the conclusion that Hamdi is, indeed, an enemy combatant.

A Judge Who May Not Be Deferential, But Whose Skepticism Is Warranted

At the same time, review of the factual record should accord the military substantial deference. The Fourth Circuit emphasized this point in its decision remanding the case to Judge Doumar, and it was right to do so, for Judge Doumar has not always been deferential.

Last week, for example, Judge Doumar suggested that the government's position was tantamount to an assertion that persons designated enemy combatants could be dunked in boiling oil. He even seemed to think that the peculiarity of the name "Mobbs" was a reason to be skeptical of the government's position. (Perhaps my own surname makes me sensitive to such slights.)

But even if he expressed it insensitively, Judge Doumar nonetheless had a valid point. "I do think that due process requires something other than a basic assertion by someone named Mobbs that they have looked at some papers and therefore they have determined [Hamdi] should be held incommunicado," he said. "Just think of the impact of that. Is that what we're fighting for?"